Trade Usages and Legal Custom: Correlation, State Recognition, and Judicial Application

The article examines competing approaches to the relationship between “custom” and “usage” in Russian legal scholarship and practice, contrasting assimilating and differentiating views. It identifies criteria for distinguishing the two phenomena: the presence of state recognition, the binding nature of the rule, the role of party autonomy, the field of application, the capacity to operate as a formal source of law, and evidentiary requirements before courts. The analysis shows that legal custom functions as a rule enforced by the state, applies irrespective of the parties’ awareness, and fills regulatory gaps; by contrast, usage operates by agreement of market participants, has an auxiliary character, and must be established in the specific case. The article notes the dual operation of usages in public and private law, the relevance of arbitration practice and international commercial practice to the consolidation of standards of conduct, and the potential transformation of a stable usage into custom once sufficient recognition is achieved. It concludes that “legal custom” has a narrower scope than “international usage” and that adjudication should carefully consider the accumulated communal legal experience when evaluating such rules of conduct.